It's not over, Zille warns on info bill

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Cape Town - Vociferous protests in and outside Parliament failed to stop the ANC majority driving the contentious protection of state information bill through the National Assembly on Tuesday.

The so-called "secrecy bill" was adopted with 229 to 107 votes by the 400-member chamber, drawing a flat warning from opposition leader Helen Zille that the legislation was heading for constitutional review.

"It is not over. This will undoubtedly end in the Constitutional Court," Zille said on the steps of Parliament, surrounded by journalists wearing black in symbolic mourning at the bill's feared impact on media freedom.

SA National Editor's Forum chairperson Mondli Makhanya said the press corps felt "broken inside" after watching it move closer to becoming law .

"We never thought we would come here dressed in black to witness the Constitution of our country being betrayed by those who built it."

Makhanya said the battle against the draft law criminalising publishing classified information would continue and that editors would work with unions and activists to fight it.

Zille raised the prospect that those MPs who voted against the bill could use clause 80 of the Constitution to refer the bill for review within 30 days of the president signing it into law.

"Don't forget, we got a third of the vote," she said.

Opposition heckled

The bill was debated last week, but what was meant to be a simple vote on Tuesday turned into a second, hour-long debate as opposition parties first took recourse to every rule in the book to delay the inevitable, then finally appealed to ANC MPs to ignore a three-line whip and reject the draft law.

It fell on deaf ears, with senior ministers like Trevor Manuel heckling opposition members who warned that the party was betraying South Africans and its own struggle for democracy.

The Inkatha Freedom Party said the unpopular legislation that drew hundreds of protesters to Parliament on Tuesday would lead the ANC to lose its legitimacy and challenged it to take it to the people in a referendum.

Congress of the People leader and former ANC minister Mosiuoa Lekota invoked the fate of the Rand Daily Mail and said the African National Congress would, like the apartheid state, suffer the shame of jailing journalists and whistleblowers who alerted the public to wrongdoing.

"I shudder to think that the men and women who say that money is being stolen will be locked up in the name of the African National Congress," he shouted to applause from the opposition benches and a packed public gallery.

Sustained opposition has led to several amendments to the bill in the past year and DA parliamentary leader Lindiwe Mazibuko said her party would fight for further changes in the National Council of Provinces.

If that failed, she would petition President Jacob Zuma not to sign the bill, but to send it back to Parliament.

"But if this bill is signed into law, I will lead an application to the Constitutional Court to have the act declared unconstitutional," she added.

Media houses, a coalition of 400 civil rights groups, and ANC ally the Congress of SA Trade Unions have also vowed to go to court to challenge the bill

Cosatu's main concern is the bill's lack of protection for whistle-blowers who pass on classified documents to expose corruption, but it also supports widespread calls for a public interest defence.

Such a defence would enable people prosecuted for publishing classified information to argue in mitigation that they had done so in the public interest.

State Security Minister Siyabonga Cwele reiterated last week that the ANC would not allow such "reckless practice".

Deputy President Kgalema Motlanthe has suggested that the ANC may strengthen the related public interest override, but this would allow journalists only to ask courts to rule that they may publish classified documents and would not offer any defence once they landed in the dock for doing so.

The draft law introduces prison sentences of up to 25 years for publishing state secrets and up to 15 years for revealing information about the operations of the intelligence community.

The provision raises fears that the intelligence services could amass too much power and become embroiled in political power struggles.

Public Protector Thuli Madonsela wrote to the Speaker that the bill would impact on her work because she relies heavily on information from whistleblowers and the media.

In a radio interview on Tuesday, Madonsela said the media was also integral to public discourse in a democracy.

"If it's not going to be possible to have a dialogue on public life, that's going to be a problem."

National security

The Office of the ANC chief whip welcomed the bill being passed in the National Assembly, and maintained that whistleblowers will be protected.

Spokesperson Moloto Mothapo said the bill was essentially a security bill, not a media bill.

He said it was aimed at protecting the national security of the country.

"It is firmly in line with best international practice as states have constitutional obligations to protect their people and territorial integrity."

He said the bill was a consequence of the acknowledgement that there were still inconsistencies and discrepancies in the current Protection of Information Act, of 1982, which presently regulates protection of disclosure of certain information.

"A review of the current Act revealed that it is outdated, as it contains some provisions that are contrary to the Constitution and other legislation in that it contains legal presumptions which are deemed to be unconstitutional."

He said the rights of whistleblowers were not prejudiced in any manner.

"The bill provides that any person who unlawfully and intentionally discloses classified information in contravention of the Act is guilty of an offence, except where such disclosure is protected under the Protected Disclosures Act, 26 of 2000."

The Protected Disclosures Act, commonly referred to as the "Whistleblowers Act", sets out detailed procedures and steps that whistleblowers must follow when disclosing unlawful activities, incompetence or corruption in organs of state.

"The bill does not interfere with these rights of whistleblowers," he said.

He said the ANC prefers an approach where if anyone comes across classified information and wants to use it, that person must follow the procedures set out in the bill and apply for permission to do so.

"The bill also has a faster procedure where a person can apply for access to classified information if it is linked to an imminent and serious public safety or environmental risk."

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